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January 21, 2019

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Publication of Private Facts

In most states, you can be sued for publishing private facts about another person, even if those facts are true.
The term "private facts" refers to information about someone's personal
life that has not previously been revealed to the public, that is not
of legitimate public concern, and the publication of which would be
offensive to a reasonable person. For example, writing about a person's
HIV status, sexual orientation, or financial troubles could lead to
liability for publication of private facts. However, the law protects
you when you publish information that is newsworthy, regardless
of whether someone else would like you to keep that information
private. In addition, the law protects you if you publish information
already exposed to the public eye and especially material obtained from
publicly available court records. Despite the law's substantial
protections for legitimate reporting on matters of public interest, it
is a good practice to obtain consent before publishing sensitive
private information about someone.

Who Can Sue for Publication of Private Facts

Only human beings, and not corporations or other organizations, can
sue for publication of private facts. Publication of private facts is a
type of invasion of privacy, and you cannot invade the privacy of a
dead person. Therefore, an estate cannot sue you for publishing private
facts about a dead person, unless your publication took place before
the person in question died. Note, however, that members of a dead
person's family may be able to sue in their own right if you disclose
private facts that relate to them too.

Elements of a Private Facts Claim

A plaintiff must establish four elements to hold someone liable for publication of private facts:

1. Public Disclosure: The disclosure of facts must be
public. Another way of saying this is that the defendant must "give
publicity" to the fact or facts in question.2. Private Fact: The fact or facts disclosed must be private, and not generally known.3. Offensive to a Reasonable Person: Publication of the private facts in question must be offensive to a reasonable person of ordinary sensibilities.4. Not Newsworthy: The facts disclosed must not be
newsworthy. Stated differently, the facts disclosed must not be a matter of legitimate public concern.

Below, we address these elements in greater detail. Keep in mind
that publication of private facts is a state-law legal claim, so there
is some variation of the law in different states. For state-specific
information, see State Law: Publication of Private Facts.

Public Disclosure

A plaintiff bringing a publication of private facts claim must show that the defendant made a public disclosure
of the fact or facts in question. This means communication to the
public at large, or to so many people that the matter must be regarded
as likely to become public knowledge. As a general matter, publication
of information on a website or blog (or any other publicly available
platform on the Internet) will satisfy this element. On the other hand,
it might not be a public disclosure if you simply convey private
information about someone in an email to one or two other people, so
long as it is understood that the information is not meant for further
dissemination to the public.

Private Fact

A plaintiff bringing a publication of private facts claim must show that the defendant disclosed a private fact.
This means pretty much what it sounds like. A private fact is an
intimate detail of one's private life that is not generally known.
Common examples of private facts include information about medical
conditions, sexual orientation and history, and financial status. It
may also include things like someone's social security or phone number,
if that information is not ordinarily publicly available. A plaintiff
has no privacy interest with respect to a matter that is already
public. Thus, you cannot be held liable for discussing or republishing
information about someone that is already publicly available (e.g.,
found on the Internet or in the newspaper). For instance, a few years
ago, Robert Steinbuch, a former Congressional aide sued Jessica Cutler,
another former Congressional aide, for publishing information about
their private sexual relations on her blog, Washingtonienne. Steinbuch also sued Anna Marie Cox of Wonkette
for calling attention to Cutler's blog and making the story spread
around the Internet like wildfire. Steinbuch's claim against Cutler may
have some merit because she disclosed on her blog embarrassing
information about him that was not publicly available, but the case has
yet to be decided. See our database entry, Steinbuch v. Cutler
for details. On the other hand, the court dismissed Steinbuch's
publication of private facts claim against Cox because she did nothing
but blog about a matter that was already public. (Cox's lawyers do an
excellent job of arguing the point in this brief.)

In addition, you cannot be held liable for giving publicity to a
matter that the plaintiff leaves open to the public eye. For example,
when the man who helped stop an assassination attempt on President Ford
sued two newspapers for revealing that he was a homosexual, the court
denied him relief, finding that his sexual orientation and
participation in gay community activities was already widely known by
hundreds of people in a variety of cities. The record showed that,
prior to the publication in question, the plaintiff had frequented gay
bars, participated in gay pride parades, and that his friendship with
Harvey Milk (a prominent gay figure) was well-known and publicized in
gay newspapers. This, in the court's view, was sufficient to establish
that the plaintiff had left his sexual orientation open to the public
eye. See Sipple v. Chronicle Publ'g Co., 154 Cal. App. 3d 1040 (Cal.
Ct. App. 1984). In another case, a stripper sued ABC for publishing
private facts about her when the television show 20/20 aired a program
about the allegedly illegal activities of several persons associated
with the strip bar where she worked. The plaintiff appeared in a few
shots of the TV program dancing nude in the background. The court held
that the plaintiff did not have a valid claim for publication of
private facts because her stripping activity was open to the public
eye; anyone who paid the $5.00 cover charge could see her performing
her work. See Puckett v. American Broad. Co., 1990 WL 170425 (6th Cir.
Nov. 6, 1990). In a more recent case, several Navy SEALs sued the Associated Press
for publishing photographs of them potentially abusing Iraqi captives.
The court held that the images were not private because the plaintiffs
were members of the military on active duty conducting wartime operations in
full uniform and chose to allow their activities to be photographed and
placed on the Internet. See Four Navy Seals v. Associated Press, 413 F.
Supp. 2d 1136 (S.D. Cal. 2005).

As the latter two cases suggest, a person's photograph or
image can be a "private fact," but generally not when it is captured in
a public or semi-public place. Therefore, you can generally publish
photographs of an individual or individuals taken in public places
without liability for publication of private facts. For example, in
Gilbert v. Hearst Pub. Co., 253 P.2d 441(Cal. 1953), the court held
that a newspaper was not liable for invasion of privacy through
publication of private facts when it published a photograph of a couple
kissing at the farmer's market in San Francisco. Note, however, that
publishing photographs of other people, even if taken in public, may
result in liability for unauthorized use of name or likeness. See Using the Name or Likeness of Another
for details. And, if you intrude into a private place in order to
photograph or record someone, you could be held liable for intrusion.
See Gathering Private Information for details.

Offensiveness

A plaintiff bringing a publication of private facts claim must show
that, under the circumstances, publishing the facts in question would
have been highly offensive to a reasonable person of ordinary sensibilities.
The question is not whether the plaintiff himself/herself found the
public disclosure highly offensive, but whether an ordinary person
reflecting community mores would find it so. Thus, the law does not
give special solicitude to a plaintiff with a "thin skin." As the
Restatement of Torts explains:

Complete privacy does not exist in this world except in a
desert, and anyone who is not a hermit must expect and endure the
ordinary incidents of the community life of which he is a part. Thus he
must expect the more or less casual observation of his neighbors as to
what he does, and that his comings and goings and his ordinary daily
activities, will be described in the press as a matter of casual
interest to others. The ordinary reasonable man does not take offense
at a report in a newspaper that he has returned from a visit, gone
camping in the woods or given a party at his house for his friends.
Even minor and moderate annoyance, as for example through public
disclosure of the fact that the plaintiff has clumsily fallen
downstairs and broken his ankle, is not sufficient to give him a cause
of action under the rule stated in this Section. It is only when the
publicity given to him is such that a reasonable person would feel
justified in feeling seriously aggrieved by it, that the cause of
action arises.

Restatement (Second) of Torts § 263D cmt. c. Some examples of
activities found to be highly offensive include publishing a photograph
of a woman nursing a child or posing nude in a bathtub, displaying a
movie of a woman's caesarian operation, and disseminating a video
showing two celebrities having sex. Some activities found not to be
highly offensive include publishing an accurate account of a private
wedding, publishing a photograph of a couple kissing in public, and
publishing photographs of military personnel showing potential prisoner
abuse.

Newsworthiness -- Matters of Legitimate Public Concern

Newsworthiness is ordinarily the most important issue in a
publication of private facts case. In many states, a plaintiff bringing
a publication of private facts claim must show affirmatively that the
facts disclosed were not newsworthy -- i.e., they were not a matter of
legitimate public concern. In other states, the defendant must raise
newsworthiness as a defense. Many courts hold that publishers have a
constitutional privilege to publish truthful information on a matter of
legitimate public concern. In any event, you ordinarily cannot he held
liable for disclosing private facts about someone so long as those
facts are of legitimate public concern.

Defining what is a matter of legitimate public interest can be
tricky. But, courts generally are reluctant to second-guess the media,
and they therefore take a very broad view of newsworthiness. Courts
have held that there is a legitimate public interest in nearly all
recent events, as well as in the private lives of prominent figures
such as movie stars, politicians, and professional athletes. Thus,
newsworthy publications include those "concerning homicide and other
crimes, arrests, police raids, suicides, marriages and divorces,
accidents, fires, catastrophes of nature, a death from the use of
narcotics, a rare disease, the birth of a child to a twelve-year-old
girl, the reappearance of one supposed to have been murdered years ago,
a report to the police concerning the escape of a wild animal and many
other similar matters of genuine, even if more or less deplorable,
popular appeal." Restatement (Second) of Torts § 263D cmt. Moreover,
the protection for newsworthy publications extends beyond the
dissemination of "news" in the sense of current events or commentary
upon public affairs. It extends also to "information concerning
interesting phases of human activity and embraces all issues about
which information is needed or appropriate so that individuals may cope
with the exigencies of their period." Campbell v. Seabury Press,
614 F.2d 395, 397 (5th Cir. 1980). Thus, courts have found to be
newsworthy articles dealing with unique love relationships, an Indian
rope trick, the whereabouts and living conditions of a former child
prodigy, and the peculiar personal characteristics of Bush campaign
volunteers.

Despite the broad scope of potentially newsworthy topics, you
risk losing your protection from liability if you exceed the bounds of
common decency: "The line is to be drawn when the publicity ceases to
be the giving of information to which the public is entitled, and
becomes a morbid and sensational prying into private lives for its own sake, with which a reasonable member of the public, with decent standards, would say that he had no concern." Virgil v. Time, Inc.,
527 F.2d 1122, 1129 (9th Cir. 1975). The courts agree that most facts
about public officials and celebrities are of legitimate public
concern, but they also recognize that even famous public figures retain
a zone of privacy relating to things like sexual activity and medical
information. Ordinary people may become "involuntary public figures"
when they take part in an event or occurrence of public significance,
such as a crime, an accident, or a spontaneous act of heroism. When
this happens, many facts about their lives become legitimately
newsworthy, like their home addresses and information about their
education, upbringing, and family. The media is allowed to use colorful
facts about newsworthy individuals to create a thorough and compelling
portrayal, so long as there is some logical connection between the
facts disclosed and the matter of legitimate public interest.
Accordingly, a court has held that information about a physician's
psychiatric history and marital life was substantially relevant to the
newsworthy topic of policing failures in the medical profession, when
the physician in question had committed two acts of alleged
malpractice. See Gilbert v. Medical Economics Co.,
665 F.2d 305 (10th Cir. 1981). Similarly, a court held that a newspaper
could legitimately publish the name and address of the father of a
person who was being questioned as a suspect in the rape of a young
girl. See Strutner v. Dispatch Printing Co., 442 N.E.2d 129 (Ohio Ct.
App. 1982). In yet another example, a court held that a woman could not
successfully sue over a photograph of her walking on the grounds of a
private psychiatric hospital when she was walking next to a famous
fellow patient whose "mental and physical rehabilitation was clearly
newsworthy." Howell v. New York Post Co., 181 A.D.2d 597 (N.Y. App.
Div. 1992).

On the other hand, sometimes the connection between disclosed
private facts and a topic of admitted public interest is too
attenuated. In one case, a court held that the disclosed fact that a
student political leader was a transsexual was not of legitimate public
concern, even though the disclosure happened in connection with a
series of newsworthy articles about the student leader (she was the
first female student body president at the college in question). See
Diaz v. Oakland Tribune, Inc., 139 Cal. App. 3d 118 (Cal. Ct. App.
1983). The court reasoned that there was no connection between the
plaintiff's gender status and her fitness for office or any other
relevant issue, and that her position did not warrant opening up her
entire private life to public inspection. Moreover, the court perceived
that the reporter in question was making a joke at the plaintiff's
expense, which did not help his case. In another case, a court held
that a surfer could take his publication of private facts claim to
trial where he established that a magazine published information about
embarrassing incidents from his personal history. While the overall
topic of the offending article (body surfing at a famous California
beach) was newsworthy, the court ruled that a jury would be entitled to
conclude that information about the plaintiff's non-surfing life was
not newsworthy. See Virgil v. Time, Inc., 527 F.2d 1122 (9th Cir. 1975).

The passage of time might also affect whether a private fact is
newsworthy. Facts that might be considered newsworthy at the time of
the event will not necessarily remain so months or years later. This
sometimes comes up with information about past crimes. Some courts have
held that information about an individual's commission of a crime in
the remote past is not a matter of legitimate public concern when that
individual has completely rehabilitated himself/herself. However, other
courts have rejected this view, so long as there is some connection to
a topic of continuing interest. Nevertheless, you may want to think
twice about publishing private information about someone who used to be
an important public figure, but who now has faded into obscurity.

Relying on Public Records

In Cox Broadcasting v. Cohen,
420 U.S. 469 (1975), the Supreme Court of the United States held that
the First Amendment to the Constitution prohibits states from imposing
a penalty on the press for publishing accurate information obtained
from a public court record. As a result of this case, most states
recognize an absolute privilege for publication of information found in
a publicly available (i.e., not sealed) court record. While the case
involved traditional media, there is no reason to believe that its
reasoning and holding would not extend to non-traditional journalists
and other online publishers. This means that you cannot be held liable
for publishing accurate facts about someone that you find in a public
court record, regardless of how embarrassing they are. Note that this
privilege will protect you in publishing information about past crimes
(discussed above), so long as you gather your information from publicly
available court records, such as an indictment or trial transcript. For
information on accessing court records, see Access to Courts and Court Records.

Many states have extended this protection from liability to the
publication of information found in "public records" in addition to
court records. The exact meaning of "public records" varies, but in
some states it includes information obtained from government agencies
through state freedom of information requests. See State Law: Publication of Private Facts for details on the scope of the First Amendment privilege and Access to Government Records for information on freedom of information requests.

Consent

Consent is a complete defense to a legal claim for publication of
private facts. When you interview someone to gather information for
later publication, it is a good practice to ask for consent to use the
material on your website, blog, or other online platform. Make sure to
get consent in writing whenever possible. You can use an interview release form. This release can help protect you against misappropriation and right of publicity claims in addition to publication of private facts claims. Some examples of interview releases can be found in Stanford's Copyright and Fair Use Guide, and at EmilioCorsetti.com and the University of Michigan Press. You can find additional samples by doing a basic Internet search for "interview release," and the book The Copyright Permission and Libel Handbook
by Lloyd J. Jassin and Steven C. Schecter has two excellent examples.
An interview release can take various forms; you will need to choose
and customize one to suit your own purposes. Make sure to mention
explicitly your intent to use information conveyed during the interview
for publication on the Internet.

Children cannot consent on their own behalf. When using the name
or likeness of a minor (generally someone under the age of eighteen),
you should seek consent from the minor's parent. Some of the example
release forms linked to above are geared toward getting the consent of
minors. State laws may recognize other situations where individuals are
not able to consent on their own behalf. For instance, imagine you come
across the scene of an accident and find a half-conscious accident
victim. You might seek the consent of that individual to take pictures
and ride along with him or her in the ambulance on the way to the
hospital. Depending on state law, a court might not recognize consent
provided by such a half-conscious and obviously traumatized individual.

Keep in mind that people giving you consent can revoke (i.e.,
take back) that consent anytime before the use of their name or
photograph takes place. Therefore, you should honor the decisions of
consenting persons who suddenly change their minds, so long as
publication hasn't already taken place.

Statute of Limitations

The "statute of limitations"
is a term used by courts to describe the maximum amount of time
plaintiffs can wait before bringing a lawsuit after the events they are
suing over took place. This time limit is set by state law and is
intended to promote fairness and keep old cases from clogging the
courts. In publication of private facts cases, the statute of
limitations ordinarily runs from the date of first publication of the
offending facts. The limitations period varies based on state law;
usually it is between one and three years. See the state pages for the applicable term in your state.

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Information in this guide is based on general principles of law and is intended for information purposes only; we make no claim as to the comprehensiveness or accuracy of the information. It is not offered for the purpose of providing individualized legal advice. Use of this guide does not create an attorney-client or any other relationship between the user and the Digital Media Law Project or the Berkman Center for Internet & Society.

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